Delhi District Court
State vs . Abadul Aziz@Habbu And Ors on 22 September, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX, NEW
DELHI
STATE Vs. ABADUL AZIZ@HABBU AND ORS
FIR No. 1721/15
U/s : 506/509/451(I)/352/34 IPC
P.S. : Malviya Nagar
Date of Institution : 05.09.2016
Date on which case reserved for Judgment : 11.09.2018
Date of judgment : 22.09.2018
JUDGMENT
1.FIR No. of the case : 1721/15
2.Date of the Commission : 29.08.2015
of the offence
3.Name of the accused : 1. Abadul Aziz @ Habbu,
: S/o Sh. Faiyaz Mohd,
: 2. Shamim Akhtar,
: W/o Sh. Abadul Aziz,
: 3. Sahjadi Yasmin,
: W/o late Md. Sohail Khan,
: All R/o H. No. 185, Hauz Rani,
: Malviya Nagar, New Delhi.
4.Name of the complainant : Smt. Afsheen,
: W/o Sh. Ikran Akhtar,
: R/o J4/56E, Ground floor,
: Khirki Extension,
: New Delhi.
5.Offence complained of : U/s 451(I)/509/506/352/34 IPC.
6.Plea of accused persons : Pleaded not guilty.
7.Final order : All accused persons acquitted for the
: offences alleged.
FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 1/8
BRIEF FACTS:
1. In brief the case of the prosecution is that on 29.08.2015 at about 11:00 am - 11:30 am, all the accused persons namely Abadul Aziz @ Habbu, Sahjadi Yasmin and Shamim Akhatar in furtherance of their common intention entered into the house of the complainant Ms. Afsheen i.e. J4/56, 4 th floor, Khirki Extension, Malviya Nagar, New Delhi committing house trespass therein in order to commit offence punishable with imprisonment and thereby committed offence U/s 451(I)/34 IPC. It is also the case that on the aforesaid date, time and place, all the accused persons used abusive language towards the complainant with intent to insult her modesty and also threatened to kill her with dire consequences and thus committed the offences U/s 509/506(II)/34 IPC. The prosecution further alleges that all the accused persons picked up a table for hitting the complainant and thus committed the offence punishable U/s 352/34 IPC.
2. On the basis of the said facts FIR bearing number 1721/15, U/s 354D/506/509/448/34 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, chargesheet under section 173 Cr.P.C. was filed on 05.09.2016 against all the three accused persons Abadul Aziz @ Habbu, Sahjadi Yasmin and Shamim Akhatar before the Ld. Mahila Court. Order dated 09.02.2017 was passed by Ld. Mahila Court observing that prima facie the offence U/s 354D was not made out against the accused Abadul Aziz and he was discharged for the same. The matter was placed before the Ld. CMM for further orders as rest of the offences were required to be tried by the regular Metropolitan Magistrate. Vide the order dated 13.02.2017 the case was withdrawn from the Ld. Mahila Court and assigned to the Court of the undersigned.
4. A charge for the offences punishable under section U/s 451(I)/509/506(II) /352/34 IPC was framed against all the three accused persons on 12.07.2017 to which accused persons pleaded not guilty and claimed trial.
FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 2/8
THE TRIAL PROCEEDINGS :
5. In order to substantiate its case, the prosecution has examined seven witnesses.
a). PW1 was the complainant Ms. Afsheen. She exhibited her complaint as Ex. PW1/A and site plan as Ex. PW1/B. She was duly cross examined by ld. defence counsel.
b). PW2 was Sh. Arslan. He deposed about the alleged incident.
c). PW3 was the Duty officer (DO) ASI Padam who received the rukka and registered the FIR. He exhibited the FIR as Ex. PW3/A, his endorsement on rukka as Ex. PW3/B and certificate U/s 65B Indian Evidence Act as Ex. PW3/C.
d). PW4 was HC Sanjeev. He exhibited the arrest memo as Ex. PW4/A.
e). PW5 was the first Investigating Officer (IO) of the case HC Jafruddin. He exhibited the DD departure entry in roznamcha as Ex. PW5/A.
f). PW6 was the second Investigating Officer (IO) of the case SI Sanjogita who filed the chargesheet before the Court.
6. Prosecution evidence was closed on 20.08.2018. After conclusion of prosecution evidence the statement of all three accused persons (SA) under section 313 r/w section 281 Cr.P.C. was recorded on 25.08.2018 wherein the accused persons denied the allegations and did not seek to lead any defence witness.
FINAL ARGUMENTS:
7. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
8. There is a presumption of innocence which exists in favour of an accused. The prosecution's task is to prove the guilt of the accused beyond reasonable doubt.
9. In the present case, the prosecution has examined two public witnesses i.e. the complainant/PW1 Smt. Afsheen and PW2 Sh. Arslan. It has to be seen whether FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 3/8 the testimonies of these witnesses inspire confidence enough to warrant conviction of the accused persons.
10. A perusal of the original complaint of the complainant/PW1 proved as Ex. PW1/A, the statement U/s 164 Cr.PC i.e. Ex. X1 and the testimony of the complainant/PW1 recorded during the trial of the present case shows that the complainant has not maintained a consistent stand and instead has made material improvements and / or embellishments throughout the various stages of the case which reflects poorly on her credibility.
11. In the complaint Ex. PW1/A, the complainant/PW1 made allegations that the accused persons came to her house on 29.08.2015 at 11:00 pm 11:30 pm and behaved discourteously with her and abused her. No specific abuses have been mentioned in the complaint. The complainant further stated in the complaint Ex. PW1/A that the accused Abadul Aziz @ Habbu extended threats to kill her and her husband. That is all the complainant stated about the alleged incident dated 29.08.2015 in the complaint Ex. PW1/A.
12. In her statement U/s 164 Cr.P.C. i.e. Ex. X1, the complainant made a material improvement qua the alleged incident dated 29.08.2015 that the accused also picked up a table to assault her. She further stated in Ex. X1 statement that the building's residents came upon hearing the noise and locked her inside a room to save her. As to which out of the three accused was the person who picked up the table, she did not say in the statement U/s 164 Cr.P.C.
13. Then during trial, the complainant/PW1 for the first time detailed the alleged expletives used by the accused persons against her and apart from deposing that the accused Abadul Aziz lifted the table for assaulting her, she testified that he also lifted a flower pot of her house due to which she started screaming loudly. So, for the first time the complainant/PW1 introduced in her chief examination a flower pot as another weapon of assault allegedly used by the accused Abadul Aziz against her.
FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 4/8
14. Furthermore, in the complaint Ex. PW1/A, the complainant made some vague allegations against the accused Abadul Aziz that sometimes when she used to go to pick her children up from school the accused would meet her on the way, stare at her and mutter something but she chose not to repeat in the first instance, this allegation during her examination in chief recorded in the present case and it was only when Ld. APP for the State crossexamined her did she admit in a parrot like manner the suggestion that sometimes the accused met her on the way to the school of her children and would gaze at her and murmur something. There are no specific date(s) or time mentioned of such incident(s) and the fact that the complainant/PW1 had to be prodded and crossexamined by Ld. APP for the State for eliciting this allegation from her shows that it is highly doubtful that such an incident or incidents ever occurred.
15. Another material contradiction is that during trial and in the complaint Ex. PW1/A, the complainant stated that public persons/neighbours had come and rescued her but in the statement U/s 161 Cr.P.C. dated 22.08.2016 she stated that her neighbours did not know about the incident as it happened in the night and only one boy i.e. Arslan (PW2) who resided on the ground floor of the premises came to her house on hearing the noise. Which version should be believed? The prosecution has not offered any explanation for these two totally contradictory versions of the complainant/PW1.
16. Yet another crucial aspect to be noted at this point is that the name of Sh. Arslan only cropped up in the statement U/s 161 Cr.P.C. of the complainant dated 22.08.2016 and neither in the original complaint nor in the statement U/s 164 Cr.P.C. did the complainant mentioned his name and the presence of PW2 at the spot is totally doubtful as even during trial it was ld. APP for the State who by way of putting a suggestion to PW1 coaxed out from her that one tenant Arslan saved her from the accused persons and PW1 did not of her own depose specifically the name of Arslan as being the person who saved her.
17. Even otherwise it is pertinent to note that in the crossexamination of PW2 FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 5/8 Sh. Arslan it came out that the husband of the complainant was the uncle of PW2, thus PW2 was not a truly independent witness. PW2 Sh. Arslan during trial testified that the accused persons were using filthy language towards Afsheen and the accused Abadul tried to touch her breast however PW2 stopped him. This is something that even the complainant/PW1 did not state in her entire testimony or anywhere in the complaint, statement U/s 161 Cr.P.C. or the statement U/s 164 Cr.P.C. and it only appears to be an embellishment made in the prosecution's case by PW2 in an overzealous attempt to secure the conviction of the accused Abadul Aziz.
18. Another noteworthy aspect is that while initially this witness testified that he saw the accused Abadul Aziz @ Habbu, his wife and daughter in law at the spot but the Court observed that one of the ladies was in muffled face (wearing a burqa) and ld. defence counsel submitted that she was a pardanasheen lady, so the Court questioned the witness as to whether any of the accused ladies were in muffled face at the time of the incident. At this point PW2 Sh. Arslan faltered, deposing that he knew the accused Abadul Aziz @ Habbu and his wife however he did not remember whether the other accused lady present was in muffled face or not that day and as such he did not know the accused lady who was in muffled face but that the people present at the spot were saying that the lady was the daughter in law of the accused.
19. The question arises as who were the persons present who told PW2 Sh. Arslan that the lady was the daughter in law of the accused Abadul Aziz? There is no answer to this question by the prosecution nor has any other public witness been cited by the prosecution in the present case. This version of PW2 also contradicts the version of the complainant in the statement U/s 161 Cr.P.C. that no other neighbour came to know about the incident except Arslan. Although in the incamera proceedings when the accused Sahjadi was asked to unmuffle her face PW2 identified her but there is a doubt over his identifying the accused Shehzadi since he could not even recollect as to whether at the time of the incident she was in muffled or unmuffled face.
FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 6/8
20. PW2 Sh. Arslan admitted in his crossexamination by Ld. APP for the State that the accused Abadul Aziz picked up a table for assaulting the complainant and testified that he caught hold of the table so the accused could not assault her. Again, the complainant/PW1 never stated in her evidence that PW2 Sh. Arslan stopped the accused Abadul Aziz from assaulting her. PW2 Sh. Arslan deposed that he could not say that the present FIR was a retaliatory proceeding by the complainant in order to pressurize the accused persons to withdraw the case which was filed against the complainant.
21. The complainant/PW1 denied the suggestion put to her by ld. defence counsel that the present FIR/case was a retaliatory proceeding in order to pressurize the accused persons to withdraw the FIR. Interestingly, it was only in the crossexamination of PW1/complainant conducted by ld. defence counsel that the complainant admitted that a family dispute was going on between her brother and the accused persons and she was also an accused in the FIR which was lodged by the daughter of accused Aalia against her brother. PW1 also testified in crossexamination that the accused persons came to her house to talk about the dispute which was going on between her brother and his wife. These facts were nowhere disclosed in the original complaint or even statements U/s 161 Cr.P.C. or U/s 164 Cr.P.C. by the complainant. The pendency of the FIR case filed admittedly by the daughter of the accused against the complainant and her brother could constitute motive for implicating the accused persons in the present case in order to create pressure upon them which is the defence taken by the accused persons in SA and which, in the facts and circumstances as discussed above, appears to be a plausible defence.
22. The accused persons denied their presence at the house of the complainant and admittedly were not arrested at the spot. Notably, the complainant did not even make a call at 100 number on that day nor even did PW2 Sh. Arslan call the police if indeed such an incident had occurred. The testimony of PW1/complainant is self contradictory and her version has materially varied/improved during the different stages FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 7/8 of the present case, making her allegations seem unbelievable and the defence of the accused persons that the complaint in the present case was made as a counter blast to the FIR case filed by the daughter of accused appears plausible. The presence of PW2 Sh. Arslan at the spot is highly doubtful and his testimony is exaggerated, farfetched and appears motivated, as he is a relative of the complainant's. The testimonies of the police witnesses are of no aid to the prosecution's case when the versions of the material witnesses PW1/complainant and PW2 Sh. Arslan do not inspire confidence and seem motivated. The prosecution has failed to establish its case against the accused persons who are bound to be extended the benefit of the doubt.
23. As a consequence of the aforesaid discussion, all the accused persons namely Abadul Aziz @ Habbu, Sahjadi Yasmin and Shamim Akhatar are held not guilty and acquitted for the offences alleged.
24. Previous bail bonds and surety bonds of the accused persons shall remain in force for a further period of six months from today U/s 437 A Cr.P.C. File be consigned to record room after necessary compliance. Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date: 2018.09.24 15:00:30 +0530 Announced in the Court (ANJANI MAHAJAN) on 22.09.2018 MM02(SD)/22.09.2018 Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.09.24
15:00:39 +0530
(ANJANI MAHAJAN)
MM02(SD)/22.09.2018
FIR No. 1721/15 State Vs. Abadul Aziz @ Habbu & Ors. 8/8